Twelfth Amendment to the United States Constitution
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The Twelfth Amendment (Amendment XII) to the United States Constitution provides the procedure for electing the President and Vice President. It replaced the procedure provided in Article II, Section 1, Clause 3, by which the Electoral College originally functioned. Problems with the original procedure arose in the elections of 1796 and 1800. The Twelfth Amendment refined the process whereby a President and a Vice President are elected by the Electoral College. The amendment was proposed by the Congress on December 9, 1803, and was ratified by the requisite three-fourths of state legislatures on June 15, 1804.
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[Note 1]
The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
Under the original procedure for the Electoral College, as provided in Article II, Section 1, Clause 3, each elector could vote for two persons. The two people chosen by the elector could not both inhabit the same state as that elector. This prohibition was designed to keep electors from voting for two "favorite sons" of their respective states. The person receiving the greatest number of votes, provided that number equaled a majority of the electors, was elected President.
If there was more than one individual who received the same number of votes, and such number equaled a majority of the electors, the House of Representatives would choose one of them to be President. If no individual had a majority, then the House of Representatives would choose from the five individuals with the greatest number of electoral votes. In either case, a majority of state delegations in the House was necessary for a candidate to be chosen to be President.
Selecting the Vice President was a simpler process. Whichever candidate received the second greatest number of votes became Vice President. The Vice President, unlike the President, was not required to receive a majority of votes from the electors. In the event of a tie for second place, the Senate would choose who would be Vice President from those tied, with each Senator casting one vote. It was not specified in the Constitution whether the sitting Vice President could cast a tie-breaking vote for Vice President under the original formula.
Problems developed almost immediately. In the 1796 election, John Adams, the Federalist Party presidential candidate, received a majority of the electoral votes. However, the Federalist electors scattered their second votes, resulting in the Democratic-Republican Party presidential candidate, Thomas Jefferson, receiving the second highest number of electoral votes and thus being elected Vice President. On January 6, 1797, Representative William L. Smith of South Carolina responded to this result by presenting a resolution on the floor of the House of Representatives for an amendment to the Constitution requiring each elector to cast one vote for President and another for Vice President. However, no action was taken on his proposal, setting the stage for the deadlocked election of 1800.
The 1800 election exposed a defect in the original formula in that if each member of the Electoral College followed party tickets, there would be a tie between the two candidates from the most popular ticket. The emergence of partisan political activity caused the failure of the original constitutional plan.
Additionally, it was becoming apparent that a situation in which the Vice President had been a defeated electoral opponent of the President would impede the ability of the two to effectively work together. By having the President and Vice President elected on a party ticket, this possibility would be eliminated, or at least minimized.
Proposal and ratification
The Twelfth Amendment was proposed by the 8th Congress on December 9, 1803, when it was approved by the House of Representatives by vote of 83–42, having been previously passed by the Senate, 22–10, on December 2. The amendment was officially submitted to the states on December 12, 1803, and was ratified by the legislatures of the following states:
- North Carolina — December 21, 1803
- Maryland — December 24, 1803
- Kentucky — December 27, 1803
- Ohio — December 30, 1803
- Pennsylvania — January 5, 1804
- Vermont — January 30, 1804
- Virginia — February 3, 1804
- New York — February 10, 1804
- New Jersey — February 22, 1804
- Rhode Island — March 12, 1804
- South Carolina — May 15, 1804
- Georgia — May 19, 1804
- New Hampshire — June 15, 1804[Note 2]
Having been ratified by the requisite three-fourths of the several states, there being 17 states in the Union at the time, the ratification of the Twelfth Amendment was completed. It was subsequently ratified by:
The amendment was rejected by:
Electoral College under the Twelfth Amendment
While the Twelfth Amendment did not change the composition of the Electoral College or the duties of the electors, it did change the process whereby a President and a Vice President are elected. The new electoral process was first used for the 1804 election. Each presidential election since has been conducted under the terms of the Twelfth Amendment.
The Twelfth Amendment stipulates that each elector must cast distinct votes for President and Vice President, instead of two votes for President. Additionally, electors may not vote for presidential and vice-presidential candidates who both reside in the elector's state—at least one of them must be an inhabitant of another state.
The Twelfth Amendment explicitly states that the Vice President must meet the same constitutional requirements as provided for the President. A majority of electoral votes is still required for a person to be elected President or Vice President by the Electoral College.
If no candidate for President has a majority of the total votes, the House of Representatives, voting by states and with the same quorum requirements as under the original procedure, chooses the President. The Twelfth Amendment requires the House to choose from the three highest receivers of electoral votes, compared to five under the original procedure.
If no candidate for Vice President has a majority of the total votes, the Senate, with each Senator having one vote, chooses the Vice President. The Twelfth Amendment requires the Senate to choose between the candidates with the "two highest numbers" of electoral votes. If multiple individuals are tied for second place, the Senate may consider all of them, in addition to the individual with the greatest number of votes. The Twelfth Amendment introduced a quorum requirement of two-thirds of the whole number of Senators for the conduct of balloting. Furthermore, the Twelfth Amendment provides that the votes of "a majority of the whole number" of Senators are required to arrive at a choice.
To prevent deadlocks from keeping the nation leaderless, the Twelfth Amendment provided that if the House could not choose a President before March 4 (then the first day of a Presidential term), the individual elected Vice President would act as President, "as in the case of the death or other constitutional disability of the President." The Twelfth Amendment did not state for how long the Vice President would act as President or if the House could still choose a President after March 4. Section 3 of the Twentieth Amendment, adopted in 1933, supersedes that provision of the Twelfth Amendment by changing the date upon which a new presidential term commences to January 20, clarifying that the Vice President-elect would only "act as President" if the House has not chosen a President by January 20, and permitting the Congress to statutorily provide "who shall then act as President" if there is no President-elect or Vice President-elect by January 20. It also clarifies that if there is no President-elect on January 20, whoever acts as President does so until a person "qualified" to occupy the Presidency is elected to be President.
There is a point of contention regarding the interpretation of the Twelfth Amendment as it relates to the Twenty-second Amendment, ratified in 1951, which prohibits a person from being "elected" President more than twice.
While it is clear that under the Twelfth Amendment the original constitutional qualifications of age, citizenship, and residency apply to both the President and Vice President, it is unclear whether a two-term president could later serve as Vice President. Some argue that the Twenty-second Amendment and Twelfth Amendment both bar any two-term president from later serving as Vice President as well as from succeeding to the presidency from any point in the United States presidential line of succession. Others contend that the Twelfth Amendment concerns qualification for service, while the Twenty-second Amendment concerns qualifications for election, and thus a former two-term president is still eligible to serve as vice president. The practical applicability of this distinction has not been tested, as no former president has ever sought the vice presidency, and thus the courts have never been required to make a judgment regarding the matter. The only time when this distinction had the possibility to come up was during Hillary Clinton's 2016 candidacy, when she jokingly said that she had considered naming Bill Clinton as her Vice President, but had been advised it would be unconstitutional.
Elections since 1804
Starting with the election of 1804, each Presidential election has been conducted under the Twelfth Amendment.
Only once since then has the House of Representatives chosen the President: In 1824, Andrew Jackson received 99 electoral votes, John Quincy Adams (son of John Adams) 84, William H. Crawford 41 and Henry Clay 37. All of the candidates were members of the Democratic-Republican Party (though there were significant political differences among them), and each had fallen short of the 131 votes necessary to win. Because the House could only consider the top three candidates, Clay could not become President. Crawford's poor health following a stroke made his election by the House unlikely. Andrew Jackson expected the House to vote for him, as he had won a plurality of the popular and electoral votes.[Note 3] Instead, the House elected Adams on the first ballot with thirteen states, followed by Jackson with seven and Crawford with four. Clay had endorsed Adams for the Presidency; the endorsement carried additional weight because Clay was the Speaker of the House. When Adams later appointed Clay his Secretary of State, many—particularly Jackson and his supporters—accused the pair of making a "Corrupt Bargain". In the less contested election for vice president, John C. Calhoun received 182 electoral votes and was elected outright.
In 1836, the Whig Party nominated different candidates in different regions in the hopes of splintering the electoral vote and denying Martin Van Buren, the Democratic candidate, a majority in the Electoral College, thereby throwing the election into the Whig-controlled House. However, this strategy failed with Van Buren winning majorities of both the popular and electoral vote. In that same election no candidate for Vice President secured a majority in the electoral college as Democratic Vice Presidential nominee Richard Mentor Johnson did not receive the electoral votes of Democratic electors from Virginia, because of his relationship with a former slave. As a result, Johnson received 147 electoral votes, one vote short of a majority; to be followed by Francis Granger with 77, John Tyler with 47 and William Smith with 23. This caused the Senate to choose whether Johnson or Granger would be the new Vice President. Johnson won with 33 votes, with Granger receiving 16.
Since 1836, no major U.S. party has nominated multiple regional presidential or vice presidential candidates in an election. However, since the Civil War there have been two serious attempts by Southern-based parties to run regional candidates in hopes of denying either of the two major candidates an electoral college majority. Both attempts (in 1948 and 1968) failed, but not by much—in both cases a shift in the result of two close states would have forced the respective elections into the House.
In modern elections, a running mate is often selected in order to appeal to a different set of voters. A Habitation Clause issue arose during the 2000 presidential election contested by George W. Bush (running-mate Dick Cheney) and Al Gore (running-mate Joe Lieberman), because it was alleged that Bush and Cheney were both inhabitants of Texas and that the Texas electors therefore violated the Twelfth Amendment in casting their ballots for both. Bush's residency was unquestioned, as he was Governor of Texas at the time. Cheney and his wife had moved to Dallas five years earlier when he assumed the role of chief executive at Halliburton. Cheney grew up in Wyoming and had represented it in Congress. A few months before the election, he switched his voter registration and driver's license to Wyoming and put his home in Dallas up for sale. Three Texas voters challenged the election in a federal court in Dallas and then appealed the decision to the United States Court of Appeals for the Fifth Circuit, where it was dismissed.
- This sentence is superseded by Section 3 of the Twentieth Amendment
- Ratification was probably completed on June 15, 1804, when the New Hampshire legislature ratified the amendment. However, the state's governor, John Taylor Gilman, vetoed the resolution of ratification on June 20, and the act failed to pass again by the two-thirds vote then required by the state constitution. As Article V of the U.S. Constitution specifies that amendments shall become effective "when ratified by the legislatures of three-fourths of the several States or by conventions in three-fourths thereof," it has been generally believed that an approval or veto by a governor is without significance. Nonetheless, if the ratification by New Hampshire be deemed ineffective, then the amendment was adopted when Tennessee ratified it on July 27, 1804.
- The popular vote in 1824 did not consist of all of the states, since many states chose their electors through their legislatures instead of by a vote of their people.
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